No. 12106 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

GAY ANN COOK, 

Plaintiff and Respondent, 

-VS - 

THOMAS NORRIS COOK, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record: 

For Appellant : 

Moulton, Bellingham, Longo and Mather, Billings, 

Montana. 

Ward Swanser argued, Billings, Montana. 

For Respondent : 

Kurth, Jones, Davidson, Calton and Bradley, 

Billings, Montana. 

John R. Da~idson~argued, Billings, Montana. 

Submitted: February 16, 1972 

Decided : MAR 2 8 1972 

Filed: MAR 2 8 1972 

M* 

Clerk 
The Honorable Jack D. Shanstrom, District Judge, sitting in place 

of Mr. Justice Wesley Castles, delivered the Opinion of the Court. 

This is an appeal from a decree of divorce and property 

settlement granted in favor of the plaintiff wife against the 

defendant husband. From the property settlement provisions of 

the decree, the husband appeals. No issue is taken to the granting of the divorce. 

The material facts are not in serious dispute. The 

parties were married for ten years prior to their separation in 

January, 1971. At that time, they were 31 and 36 years old 

respectively. No children were born of the marriage. 

Both parties were steadily employed throughout most of 

the marriage. At the time of the divorce the husband was earning approximately $15,000 per year as an automotive painter. The 

wife last earned $450 per month as a secretary until she resigned 

from gainful employment about one year before the divorce. At 

the time of the trial both parties were mentally and physically 

capable of providing for their own support. The wife's education 

consisted of high school plus one year of college. The husband's 

was limited to high school only. 

Over the years, the wife contributed from $80 to $160 

per month from her earnings toward the food and housing needs of 

the parties. The husband generally paid the remaining living 

expenses not covered by the wife's contributions and saved the 

rest of his income. 

On the date of the trial, the parties individually or 

jointly owned the assets hereinafter listed, all of which were 
acquired during the marriage. The husband correctly argues 

that approximately 69% of these assets were accumulated through 

his and not his wife's finances. The properties in dispute on 

this appeal are as follows: 

JOINT PROPERTY 

Investor's Diversified Certificate 

Equity in Family Home 

HUSBAND'S INDIVIDUAL PROPERTY 

Checking account (maintained jointly 

with his aunt) 

1966 automobile 

1968 automobile 

WIFE 'S INDIVIDUAL PROPERTY 

None 

TOTAL 

The judgment of the trial court made no provision for 

continuing alimony in favor of the wife, but it did in lieu 

thereof establish a form of property settlement on the following 

terms. It set aside the 1968 automobile to the wife and ordered 

the husband to pay her the additional cash sum of $13,317.37. 

All remaining property was decreed to the husband. The wife's 

cash settlement figure was arrived at by deducting the value of 

her automobile from the total assets acquired during the marriage 

and dividing the remainder by two. In effect, the wife was given 

the cash value of one-half of the assets acquired during the 

marriage, including those owned individually by the husband as 
well as by the parties jointly. The husband was awarded the 

rest of the property in kind. 

The only issue argued on appeal is whether the district 

court had the authority to award the wife a cash sum equal to 

one-half of the property owned individually by the husband. We 

affirm the judgment of the trial court. In doing so, and contrary to the husband's contention, we do not impose a community 

property standard in Montana. 

The authority of the trial court to deal in matters of 

property settlement (as distinguished from alimony and child 

support) in divorce actions was most recently affirmed in Libra 

v. Libra, 157 Mont. 252, 484 P.2d 748, 28 St. Rep. 460 (1971). 

In exercising its authority, we there said of the trial court: 

"(a) divorce court is a court of equity 

and once equity takes jurisdiction, 

it will grant complete relief; also, that 

property acquired jointly during the 

marriage may be divided by the court 

whether the title thereto is in either or 

both of the parties. * * * 

" * * * In these later cases the Court 

approved the allocation of the properties between the parties on an equitable basis according to their contribution even though 

this required that title be divested from one 

and transferred to the other. " 

Libra followed close on the heels of Hodgson v. Hodgson, 

156 Mont. 469, 482 P.2d 140, 28 St. Rep. 195.(1971) wherein the 

wife was awarded by way of property settlement 71% of the marital 

assets, although her financial contributions through inheritance 

were only 59%. We affirmed under the circumstances of that case 

that the district court did not abuse its discretion, even though 
its order in effect transferred title to real property from 

the husband to the wife. 

Libra and Hodgson should have laid to rest the husband's 

argument on appeal here. It has already been at least twice 

decided in this State that the trial court may make an equitable division of the litigants' property in a divorce action 

regardless of the state of title to that property and regardless 

of actual financial contribution. We are asked by the husband, 

however, to retreat from these cases for the stated reason that 

there is no statutory authority for the property division powers 

therein granted the trial court. Appellant cites the various 

provisions contained in Title 36, R.C.M. 1947, setting forth the 

correlative financial rights and obligations of husband and wife 

during their marriage. The statutes relied upon compose what is 

commonly called the Married Women's Act. 

The application of these statutes to married couples is 

undeniable, but there is no intimation that they are at all controlling upon dissolution of the marriage by divorce. In the 

latter event, the trial court becomes charged with the duty of 

granting "complete relief", including property division, according to the equities of each individual case. Johnson v. Johnson, 

137 Mont. 11, 349 P.2d 310. The district judge's broad powers 

in this regard are expressed in section 21-139, R.C.M. 1947, wherein he is empowered to make "suitable allowance to the wife for 

her support during her life, or for a shorter period, as the 

court may deem just, having regard to the circumstances of the 

parties respectively * * *." (Emphasis added.) 
Appellant also refers us to four Montana decisions 

(all predating Johnson, Hodgson and Libra) for early authority 

that the district court in a divorce action does not have the 

discretion to make property division of marital assets in lieu 

of or in addition to alimony. He cites: Rufenach v. Rufenach, 

120 Mont. 351, 185 P.2d 293; Lewis v. Lewis, 109 Mont. 42, 94 

P.2d 211; Emery v. Emery, 122 Mont. 201, 200 P.2d 251; and, 

Lewis v. Bowman et al., 113 Mont. 68, 121 P.2d 162. 

We do not necessarily agree that the cases last cited 

stand for the restrictive guidelines on the power of the district 

court asserted by appellant, but to erase all doubt, we hereby 

expressly overrule these cases insofar as they are inconsistent 

herewith. 

The trial judge's resolution of property division is 

fettered only by the range of reason and his judgment will not 

be disturbed in the absence of an abuse of discretion. Bickford 

v. Bickford, 117 Mont. 372, 158 P.2d 796. No such abuse of discretion is shown under the facts presented here. All property 

considered for division by the trial judge was accumulated during 

the marriage. True, the husband had scrupulously kept title to 

this property primarily in his own name. He generally managed 

the business affairs of the couple, and he found it simple to 

manipulate title to his benefit. This does not prevent the court 

from dealing the wife her fair share. Here the court chose to 

transfer all title to the husband, both individual and joint, 

requiring a cash settlement equal to one-half its value to the 

wife. There is authority in Montana for property division in 
those proportions. In Johnson we stated: 

"And, equal division under normal conditions 

of property accumulated through joint efforts 

is not regarded as unreasonable." 

The district court apparently considered more in this 

case than mere financial contributions. The law has never 

confined "joint efforts" to such a narrow meaning. The marital 

partnership is more than a business relation. The pecuniary 

and proprietary fruits of the marriage are frequently acquired 

by joint effort, even though actual financial outlay may be more 

the contribution of one spouse than the other. 

This holding does not make Montana a community property 

state. There is no required percentage of allocation to be 

applied in all cases. Each case must be looked at by the trial 

court individually with an eye to its unique circumstances. Under 

the circumstances here, we are not compelled to state that equal 

division of the property is an inequitable result. 

The judgment is affirmed. 

Jack Shanstrom, district 

udge, sitting in place of Mr. 

Justice Wesley Castles. 

9 ,As ociate Justices -